Dead Terrorists Tell No Tales

Is Barack Obama killing too many bad guys before the U.S. can interrogate them?

The CIA reportedly succeeded in killing the head of the Pakistani Taliban -- the most recent in a flurry of drone attacks the agency has launched in South Asia and the Middle East. Another strike in Pakistan reportedly took out one of the FBI's most wanted terrorists; another in Pakistan took out a master bomb-maker for the al Qaeda affiliate in the Philippines, Abu Sayyaf; and a strike in Yemen targeted a senior military leader of al Qaeda in the Arabian Peninsula, the group behind the Christmas Day attack (his fate has yet to be determined).

President Barack Obama's escalation of drone strikes is one area in the counterterrorism fight where he has earned plaudits from even his most vocal critics on the right. Hold the applause. Obama's escalation of the "Predator War" comes at the very same time he has eliminated the CIA's capability to capture senior terrorist leaders alive and interrogate them for information on new attacks. The Predator has become for President Obama what the cruise missile was to President Bill Clinton -- an easy way to appear like he is taking tough action against terrorists, when he is really shying away from the hard decisions needed to protect the United States.

To be sure, unmanned drones are critical in the struggle against al Qaeda. They allow the United States to reach terrorists hiding in remote regions where it would be difficult for special operations forces to reach them, or to act on perishable intelligence when the only choice is to kill a terrorist or lose him. Constantly hovering Predator (or Reaper) drones also have a psychological effect on the enemy, forcing al Qaeda leaders to live in fear and spend time focusing on self-preservation that would otherwise be used planning the next attack. All this is for the good.

The problem is that Obama is increasingly using drone strikes as a substitute for operations to bring terrorist leaders in alive for questioning -- and that is putting the country at risk. As one high-ranking CIA official explained to me, in an interview for my book Courting Disaster, "In the wake of 9/11, [the CIA] put forward a program that had a lethal component to strike back at the people who did this. But the other component was to prevent this kind of catastrophe from happening again. And for that, killing people -- especially killing senior al Qaeda leaders -- is potentially counterproductive in that we can't know or learn of future attacks. You can't kill them all, and you don't want to kill them all from an intelligence standpoint. We needed to know what they knew."

In the years after the 9/11 attacks, the CIA worked with Pakistani and other intelligence services to hunt down senior terrorist leaders and take them in for interrogation. Among those captured were men like Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Ammar al-Baluchi, Walid bin Attash, Riduan Isamuddin (aka "Hambali"), Bashir bin Lap, Abd al-Rahim al-Nashiri, Abu Faraj al-Libbi, Abd al-Hadi al-Iraqi, and others. In all, about 100 terrorists were detained and questioned by the CIA. And the information they provided helped break up terrorist cells that were planning to blow up the U.S. Consulate in Karachi and the U.S. Marine camp in Djibouti; explode seven airplanes flying across the Atlantic from London to cities in North America; and fly hijacked airplanes into Heathrow Airport, London's financial district, and the Library Tower in Los Angeles.

Today, the Obama administration is no longer attempting to capture men like these alive; it is simply killing them. This may be satisfying, but it comes at a price. With every drone strike that vaporizes a senior al Qaeda leader, actionable intelligence is vaporized along with him. Dead terrorists can't tell you their plans to strike America.

The recent strike on Qasim al-Raymi, a senior military leader of al Qaeda in the Arabian Peninsula, is a case in point. After having been caught blind by this terrorist network's near success in blowing up an airplane over Detroit, why not try to capture and interrogate its senior leaders alive instead of killing them? Wouldn't it make sense to get these men to reveal whom they have trained, where they have been deployed, and what their plans are for the next attack? But the Obama administration is not even trying to do this.

Obama's drone campaign is costing the United States vital intelligence, and it has also exposed him to the charge of hypocrisy. The president has claimed the moral high ground in eliminating the CIA's enhanced interrogation program, saying that he rejects the "the false choice between our security and our ideals." Yet when Obama orders a Predator or Reaper strike, he is often signing the death warrant for the women and children who will be killed alongside the target -- individuals whose only sin is that they are married to, or the children of, a terrorist. Is this not a choice between security and ideals? And why is it a morally superior choice? Is it really more in keeping with American ideals to kill a terrorist and the innocent people around him, when the United States might instead spare the innocent, capture the same terrorist alive, and get intelligence from him that could potentially save many other innocent lives as well?

It is true that Obama's predecessor George W. Bush also reportedly increased the use of drone strikes against senior terrorist leaders toward the end of his term. But the Bush administration also maintained and exercised the CIA's capability to capture and interrogate such leaders. Obama has now dramatically escalated drone strikes while eliminating what is arguably the most important and successful intelligence programs in the war on terror. This is not a sign of Obama's seriousness. To the contrary, he is using drones as cover for his dangerous decision to eliminate the CIA's capability to take terrorist leaders in alive and question them effectively for actionable intelligence. That is nothing to praise.

When Khalid Sheikh Mohammed was located in 2003, the United States did not send a Predator to kill him. It captured him alive and got him to give up the details of the plots he had set in motion. That decision saved thousands of lives. The fact that Obama's administration no longer does this when it locates senior terrorist leaders today means the president is voluntarily sacrificing intelligence that could protect the American people -- and that the U.S. homeland is at greater risk of a terrorist attack.

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Try Again

Why Obama should reverse his reversal and keep the KSM trial out of civilian courts.

Now that U.S. Attorney General Eric Holder appears ready to abandon the decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in a New York federal court, he should also reconsider the very logic of holding civilian trials for Guantánamo detainees. Holder has sought to paint a stark contrast between the legal approaches of the Obama and Bush administrations and to demonstrate the White House's commitment to the rule of law. Yet this trial represents a roll of the dice that undermines both objectives.

The president and the attorney general have confidently predicted the death penalty for Mohammed, while simultaneously insisting that he will receive a "fair trial." But what does this mean? A fair trial presumes that the state will respect the outcome. While the possibility of acquittal might seem remote, Mohammed's lawyers have significant legal grounds to challenge the evidence against him and its means of extraction. The administration is therefore obliged to make plans for this outcome.

What then are the administration's options in the case of an acquittal? Preordained permanent incarceration and death cannot be the only possible outcomes, without respect to the jury's decision. That would be wholly at odds with the very idea of a fair trial. Yet the risks to U.S. national security of Mohammed's release are so compelling as to suggest that it would be inconceivable to let him go. We certainly hope it is inconceivable.

If Mohammed is not to be imprisoned indefinitely in a secure U.S. facility, he would have to be similarly incarcerated abroad. This simply revives the whole question of the United States using "offshore" jurisdictions, such as Guantánamo Bay, to avoid giving constitutional protections to prisoners. Thus, subjecting Mohammed to a civilian criminal trial suggests a cynical calculation by the attorney general that the odds of conviction are high enough that the trial will look fair after the fact. Really, the jury will have done nothing more than provide political cover for Mohammed's execution. The question of whether Mohammed will ever be a free man has already been decided.

Under these circumstances, the correct procedure is to try Mohammed for war crimes under 18 United States Code, section 2441. Al Qaeda is avowedly at war with the United States, and the attack on the World Trade Center -- an unwarranted attack on a civilian target -- was clearly a war crime.

The trial should take place before the military commission established by Congress and confirmed by the Supreme Court -- and to which the attorney general has already, in baffling contrast, assigned the case of the accused USS Cole bombing planner Abd al-Rahim al-Nashiri. Such an approach creates no legal, ethical, or security dilemmas for the United States. If Mohammed were to be acquitted by the commission, he could still be detained under the Third Geneva Convention.

This protocol contemplates that lawful enemy combatants can be detained indefinitely by the belligerent of which they are a captive. After the end of hostilities, such prisoners are usually exchanged. The convention grants certain rights to prisoners of war who are lawful enemy combatants -- that is, among other things, combatants who wear the uniform of, and are regular members of, the armed forces of a belligerent country. Mohammed clearly does not fall into this category. Instead, he must be classified as an unlawful enemy combatant -- a person who, like a spy, is not entitled to the protections of the convention. Clearly, though, he can have no greater rights than a lawful enemy combatant.

The facts of this case therefore point to the proper legal procedures for ending the limbo of Mohammed's Guantánamo detention. Unlike the attorney general's approach, which makes a mockery of the rule of law by pretending that the administration accepts the necessary legal implications of acquittal by a civilian court, trying Mohammed for war crimes under current U.S. laws avoids such hypocrisy. If Mohammed were to be acquitted, or sentenced to less than capital punishment, as is certainly possible in a civilian criminal court, he could still be lawfully detained until the end of hostilities. Accordingly, the United States would be acting within its legal rights if it kept him in U.S. custody, even though acquitted of war crimes, until the threat of al Qaeda was extinguished.

No doubt, the attorney general had foreign public opinion in mind in choosing to subject Mohammed to a civilian trial rather than a military one. But if his aim was specifically to restore global faith in America's respect for the rule of law, this decision only risks weakening it further.

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